P. v. Palomaria

Filed 4/12/07 P. v. Palomaria CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

Defendant was convicted following a jury trial of misdemeanor assault (Pen. Code,  240) and elder abuse (Pen. Code,  368, subd. (b)(1)).^[1] In this appeal, he argues that misconduct was committed by the prosecutor during closing argument. We conclude that no prejudicial prosecutorial misconduct occurred, and affirm the judgment.

Statement of Facts

In December of 2005, defendant lived with the victim of the assault, his 86-year-old mother Lori, in a small studio apartment on Howard Street in San Francisco. Defendants sister Cristina was visiting the apartment at the end of December to spend the holidays with her mother.^[2] Lori was described by her physician as very frail and in poor medical health, with a relatively limited life expectancy. She requires dialysis three times a week due to kidney failure, and is quite susceptible to injuries.

After drinking vodka all day, defendant returned to the apartment drunk on the afternoon of December 29, 2005. When Lori asked defendant for the house key, he threw it at her face. He then asked Lori for money, but she said she didnt have any money. Defendant picked up a medium size metal grocery cart with both hands and threw it at Lori, who was sitting on a bed only a few feet from him. The cart struck Lori in the right shoulder, which caused pain and a red mark under her clavicle and on her right arm, but did not inflict any further injury. Cristina called 911, and defendant left the apartment.

Police officers arrived within 10 minutes to take a statement from Lori. She was upset and expressed numerous times that she was scared of her son. Lori also reported to the officer that defendant had been physically violent with her in the past. Defendant was arrested later that evening at the apartment.

Both defendant and Lori claimed that they have a good relationship; he assists her with shopping and errands. Defendant testified that on December 29, he was drinking and [n]ot too clear about the events of that day. He asked Cristina for a loan, but she said she didnt have any change. Defendant then panhandled money, which he used to buy vodka and whisky. He returned to the apartment feeling good. After defendant hit a plate of rotten food, Cristina became angry and started giving [him] a sermon. Defendant testified that he started getting really hot, and things became really blurred, so he left the apartment to smoke a cigarette in front of the doorway. A police officer then arrived and arrested him. Defendant denied that he threw a cart at his mother or attempted to harm her. He testified that he may have pushed the cart or picked it up to move it aside when he left the apartment, but did not recall the events clearly.

Discussion

Defendant claims that the prosecutor committed misconduct during closing argument. When discussing defendants claim that striking the victim with the cart may have been an accident, the prosecutor stated: The issue of it rolling and being an accident, well, you can buy it. You know what, when you go into the jury assembly room, you get to do whatever you want. You dont have to listen to the lawyers or with all due respect to the judge. Its kind of a beautiful thing about the jury system. Its pure democracy. You talk amongst yourselves. You get to do actually whats called justice. Im not meaning to rap the flag. Thats really the dividend you get. Its not your subsidized parking, listening to [defense counsel], which I dont think is any great pleasure, but you get to do something which people dont normally get to do is justice in this case. And in this situation here, he wants you to send him back to his mother. And Ill [sic] telling you that there are two serious crimes that were committed.

Defense counsel then objected, and after a sidebar conference the court instructed the jury: Ladies and gentlemen, theres a statement that Im going to strike at this time. Its when the prosecutor said in this situation here he wants you to send him back to his mother. Im going to strike that statement. Do not give any speculation to that statement at all as to what it meant. Strike that and do not consider that in your deliberation at any time. Thank you very much.

Defendant complains that two parts of the prosecutors argument constituted misconduct: First, the implication that the jury had the responsibility of protecting Lori from her son by reaching a guilty verdict; and second, the improper comment that the jurors were not required to listen to the judge and could do whatever they wanted to do. He maintains that the prosecutors comments improperly inflamed the jurors by admonishing them to assume the role of Loris protector and disregard the courts instructions to reach a guilty verdict.

 The applicable federal and state standards regarding prosecutorial misconduct are well established.  A prosecutors . . . intemperate behavior violates the federal Constitution when it comprises a pattern of conduct so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process.   [Citations.] Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves   the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.   [Citation.] [Citation.] [W]hen the claim focuses upon comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion.  (People v. Smithey (1999) 20 Cal.4th 936, 960; see also People v. Prieto (2003) 30 Cal.4th 226, 260.)

  [T]he prosecutor has a wide-ranging right to discuss the case in closing argument. He has the right to fully state his views as to what the evidence shows and to urge whatever conclusions he deems proper. Opposing counsel may not complain on appeal if the reasoning is faulty or the conclusions are illogical because these are matters for the jury to determine.   (People v. McCray (1997) 58 Cal.App.4th 159, 173174.) However, [i]t is misconduct for a prosecutor to go beyond the evidence before the jury . . . . (People v. Coddington (2000) 23 Cal.4th 529, 600; see also People v. Benson (1990) 52 Cal.3d 754, 794.) We review the trial courts ruling on prosecutorial misconduct for abuse of discretion. (People v. Alvarez (1996) 14 Cal.4th 155, 213.)

I. The Claim of Forfeiture

The Attorney General points out that defendant objected to only a single instance of misconduct, the send him back to his mother comment. Thus, the contention is made that defendant failed to preserve on appeal the claim of misconduct associated with jury nullification.

Generally,   a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashionand on the same groundthe defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety.    (People v. Avila (2006) 38 Cal.4th 491, 609.) [A] reviewing court will not review a claim of misconduct in the absence of an objection and request for admonishment at trial. (People v. Gionis (1995) 9 Cal.4th 1196, 1215; see also People v. Scott (1997) 15 Cal.4th 1188, 1217; People v. Davis (1995) 10 Cal.4th 463, 537.)  To preserve for appeal a claim of prosecutorial misconduct, the defense must make a timely objection at trial and request an admonition; otherwise, the point is reviewable only if an admonition would not have cured the harm caused by the misconduct.  (People v. Kipp (2001) 26 Cal.4th 1100, 1130, quoting from People v. Price (1991) 1 Cal.4th 324, 447; see also People v. Arias (1996) 13 Cal.4th 92, 159.)

As we read the record, the defense objection at trial apparently did not encompass the claim now made that the prosecutor committed misconduct by advising the jurors to do whatever you want during deliberations.^[3] Without an objection, the court did not have the opportunity to provide the jurors with a curative admonition. Still, to resolve defendants assertion that any prejudice from the remark could not readily have been cured by the trial courts intervention, and to offset any claim of ineffective assistance of counsel, we reach the merits of both claims of misconduct. (See People v. Turner (2004) 34 Cal.4th 406, 431; People v. Lucas (1995) 12 Cal.4th 415, 457; People v. Hawkins (1995) 10 Cal.4th 920, 948949; People v. Clark (1993) 5 Cal.4th 950, 1013.)

II. The Send Him Back to his Mother Comment

We are not persuaded that the prosecutors suggestion to the jury that defendant wants you to send him back to his mother was so egregious that it reached the level of misconduct. As the trial court determined, the statement was improper, as it was not confined to comment on the evidence, but argument amounts to misconduct only if it involves the use of deceptive or reprehensible methods to attempt to persuade the jury, or infects the trial with such unfairness as to make the conviction a denial of due process. (Darden v. Wainwright (1986) 477 U.S. 168, 181; United States v. Agurs (1976) 427 U.S. 97, 108; People v. Avila, supra, 38 Cal.4th at p. 610.) Even if we engage in the inference drawn by defendant that the prosecutors remark stressed the jurys role as protector of the victim, we find that the conduct neither rendered defendants trial fundamentally unfair nor constituted a deceptive or reprehensible method to attempt to persuade the jury. (See People v. Carpenter (1999) 21 Cal.4th 1016, 1055; People v. Smithey, supra, 20 Cal.4th at p. 961.)

Moreover, the court directed the jury to ignore the remark, and emphasized that it was stricken. We must presume the jurors followed the instruction and did not give any weight to the prosecutors statement in their deliberations. (People v. Ledesma (2006) 39 Cal.4th 641, 684; People v. Ramos (1997) 15 Cal.4th 1133, 1181; People v. Vu (2006) 143 Cal.App.4th 1009, 1031; People v. Dias (1997) 52 Cal.App.4th 46, 54.) We thus conclude that the prosecutors comment did not provoke the jurors to protect the victim from harm by defendant by finding him guilty, and was not misconduct.

III. The Get to do Whatever You Want Statement

We turn to an examination of the prosecutors statement that jurors get to do whatever you want in the jury assembly room, and dont have to listen to the lawyers or . . . the judge. Defendant complains that the prosecutor thereby improperly invited the jury to disregard the courts instruction and do whatever it wanted to do. He adds that in conjunction with the prosecutors invitation to the jury to assume the role of Loris protector, the misconduct may have convinced the jurors to find him guilty, not because the prosecutor proved his case, but instead to eliminate the possibility that [defendant] might hurt his elderly mother.

We do not interpret the prosecutors remarks in the manner urged by defendant.   [W]hen the claim focuses upon comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion.   (People v. Ayala (2000) 23 Cal.4th 225, 283-284; see also People v. Ochoa (1998) 19 Cal.4th 353, 427.) First, the comment that jurors dont have to listen to the lawyers was not a misstatement of law. (See People v. Hawthorne (1992) 4 Cal.4th 43, 59; People v. Smith (2005) 135 Cal.App.4th 914, 925.) While we agree with defendant that the prosecutors suggestion that the jury did not have to listen to the judge was improper, we do not think the jury interpreted the statement as an invitation to disregard the law. Taken in context, the statement was more of a entreaty to the jury to reach a verdict that achieved justice rather than conformed to the arguments offered in court. In fact, the prosecutor immediately thereafter told the jury: Just look upon the evidence thats here, not statements by counsel, not by advocacy, but by the witnesses thats [sic] here.

Further, the court specifically instructed the jury: You must follow the law as I explain it to you even if you disagree with it. If you believe that the attorneys comments on the law conflict with my instructions, you must follow my instructions.^[4]

(See People v. Earp (1999) 20 Cal.4th 826, 895896; People v. Wrest (1992) 3 Cal.4th 1088, 1109.) The jurors were also told that each fact, circumstance and inference necessary to establish defendants guilt must be proved beyond a reasonable doubt, that they were the sole judges of the credibility of the evidence presented, that they must decide what the facts are in this case, and [n]othing the attorneys say is evidence. Thus, the jurors were aware that the prosecutors statement was neither evidence nor determinative of the law, and that they alone were to assess the weight and credibility of the evidence. Upon our review of the record in its entirety we find that the statement was neither intended by the prosecutor nor interpreted by the jurors in an objectionable fashion to advocate a disregard of the law or the evidence. (People v. Turner, supra, 34 Cal.4th at p. 431.) We also conclude that under the facts presented it is not reasonably probable the jury would have reached a result more favorable to defendant absent the prosecutors misstatement of the law. (See People v. Kipp, supra, 26 Cal.4th at p. 1130; Earp, at p. 896; People v. Welch (1999) 20 Cal.4th 701, 753.) We conclude that no

prejudicial prosecutorial misconduct occurred. (See People v. Smithey, supra, 20 Cal.4th at pp. 10001001.)

Accordingly, the judgment is affirmed.

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^[1] The assault conviction was the lesser included offense of the charge of aggravated assault (Pen. Code,  245, subd. (a)(1)). The jury found the associated allegations of use of a dangerous weapon by defendant in commission of the offenses (Pen. Code,  1192.7, subd. (c)(23), 12022, subd. (b)(1)) not true.

^[2]For the sake of clarity and convenience we will refer to the victim and her daughter by their first names.

^[3]The objection was general in nature, and the trial courts response was limited to striking the statement that defendant wants you to send him back to his mother.

^[4]This instruction was essentially the equivalent of the admonition the trial court would have given if defendant had objected to the prosecutors argument.